Opinion
CA 03-01176.
December 31, 2003.
Appeal from an order of Supreme Court, Oswego County (McCarthy, J.), entered February 24, 2003, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.
STANLEY LAW OFFICES, SYRACUSE (ROBERT A. QUATTROCCI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (KEVIN R. VAN DUSER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Before: PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Defendants moved for summary judgment dismissing the complaint in this personal injury action as barred by a release signed by plaintiff, and plaintiff cross-moved for partial summary judgment dismissing the affirmative defense of release. Supreme Court properly granted defendants' motion and denied plaintiff's cross motion. The release unequivocally applies to any claim plaintiff may have had with respect to "any and all known and unknown personal injuries and damages resulting from [the] automobile accident" involving defendants. The contention of plaintiff that she did not intend to release her claims for personal injuries does not warrant setting the release aside ( see Galatioto v. Hanes, 224 A.D.2d 923). Nor may plaintiff avoid the effect of the release based upon her admitted failure to read the release before signing it (see Verstreate v. Cohen, 242 A.D.3d 862, 863; Pressley v. Rochester City School Dist., 234 A.D.2d 998, 999). Finally, the record establishes that plaintiff knew of her wrist injury and was receiving medical treatment for that injury at the time she executed the release, and the subsequent diagnosis of a fracture following a bone scan does not warrant setting aside the release based upon mutual mistake. "Where, as here, plaintiff knew of the injury for which she now seeks to recover at the time she executed the general release, but the alleged mistake is to a consequence, future course or sequela of the known injury, the release must stand" ( Pressley, 234 A.D.2d at 998; see Finklea v. Heim, 262 A.D.2d 1056; Galatioto, 224 A.D.2d at 924; Wirhowski v. Hudson Armored Car Courier Serv., 221 A.D.2d 523, 525).